If ever there was a case in which judges made the law look ridiculous in the eyes of the public, it was this week’s matter involving convicted rapists Jacob Mashinini and Simon Abolisi. The two were part of a group of four men who gang-raped a relative of Mashinini. Sentenced to life imprisonment, the two appealed, saying this was “too long”.

Life imprisonment is the default sentence for gang rape unless there are “substantial and compelling” reasons for a lesser sentence.

All three judges of the Supreme Court of Appeal agreed that, given the circumstances of the crime, there were no such circumstances, in which case the sentence would ordinarily be life imprisonment.

But the appeal judges differed over a question that the public will view as a mere technicality, and as a result of the court majority’s view the two men will now serve just 10 years each.

The dispute concerns an error made by the prosecution: the accused were charged with “rape, read with section 51 (2) of the Criminal Law Amendment Act” whereas this should have been “rape, read with section 51 (1)” of the same law. What’s the difference? Section 51 (2) says that if someone without a previous criminal record commits rape there is a standard sentence of 10 years. The previous section says that in cases of gang rape there is a prescribed life sentence. The three appeal judges divided on how to respond. The majority, judges Nonkosi Mhlantla and Ronnie Bosielo, saw a serious constitutional issue at stake: no accused should be found guilty of a different or more serious offence than that with which he or she is charged.

The rapists were charged with an offence for which the sentence was 10 years, so they could not be sentenced for a different offence that carried a sentence of life imprisonment. The majority also strongly criticised the “disturbing flippant attitude” and the “careless manner” of the prosecution in citing the wrong section. Several paragraphs of even more stinging remarks followed and the judges concluded that, thanks to the prosecution, the rapists would serve less time than they should.

The third appeal judge, Nathan Ponnan, disagreed and said that they were rightly sentenced to life. Fundamental to the majority decision was Judge Mhlantla’s view that the two convicts had been sentenced for an offence different from that for which they had been convicted. Not so, said Judge Ponnan.

The Criminal Law Amendment Act created no new offences; rape was still rape. Parliament simply defined circumstances that, if present, would trigger particular sentences. The accused were legally represented throughout, Judge Ponnan said. They had pleaded guilty and stood by this plea. Nor did they try to withdraw their admission that they took part in a gang rape or even challenge the correctness of their conviction.

The accused were clearly informed by the magistrate that they faced charges that could attract a prescribed sentence. In this sense their rights had been properly respected. In addition, both the high court that passed sentence as well as the two majority appeal judges agreed, as did Judge Ponnan, that there were no appropriate grounds to justify a lesser sentence than life imprisonment. And the appeal as originally noted by the accused was not against conviction but on the grounds that the court should have found there were “substantial and compelling” circumstances warranting a lesser sentence.

If it was correct, said Ponnan, that they had been charged with one offence, but convicted of another then he could not understand how only the sentence and not the trial and conviction itself should be set aside and nullified.

The State’s “error” became a key factor only when the issue was argued in the SAC. Judge Ponnan objected to the majority’s harsh criticism of the State, saying that the way the “error” came to be raised in the appeal court meant that the State was not able to investigate properly or bring any evidence to counter the complaint. Since the State had had no opportunity to explain itself, it was not right to conclude that its behaviour was “disturbingly flippant”.

The court’s majority lacked a “factual foundation” for such remarks, he said, and should therefore not have made this inference. That a single digit error could make such a difference, changing a deserved life sentence to just 10 years, might astonish the lay public, but, say two judges of the SCA, that is the law.

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